Christie’s Law of Contract in South Africa

July 1st, 2017

By Graham Bradfield

Durban: LexisNexis

(2016) 7th edition

Price R 1 200 (incl VAT)

809 pages (soft cover)

Christie’s Law of Contract in South Africa was first published in 1981. It remains to this day a well-established and leading authority on the law of contract. The seventh edition of the book provides a detailed and comprehensive exposition of the general principles of the law of contract as it has evolved, and been applied by the courts.

This book is divided into 14 chapters, which includes –

  • a historical introduction;
  • agreement;
  • formalities;
  • conditional contracts;
  • terms of contract;
  • parties to the contract;
  • misrepresentation and fraud;
  • duress and undue influence;
  • mistake;
  • illegality and unenforceability;
  • performance;
  • discharge and variation;
  • mora and breach; and
  • remedies for breach.

This well-structured logical approach to the layout of the book, allows the reader to quickly understand the general overview of the law of contract, while the subheadings, allows the reader to navigate to a specific area of the law of contract, which they wish to read.

In terms of the contents of the book, there is an excellent balance of texts and extracts from key cases, where the relevant principles have been applied. This edition of the book has been updated to include case law that has been decided in the past five years, and focuses on Supreme Court of Appeal (SCA) and Constitutional Court (CC) decisions, which have either settled or fundamentally changed the law.

There has been new case law on a variety of contract law issues, such as statutory requirements for: Formalities; electronic signatures; interpretation of contracts; agreements to negotiate; simulated contracts; economic duress and undue influence; interim interdicts and specific performance. The new case law in relation to these issues have been incorporated into the new edition, providing an up-to-date analysis of legal principles.

Of significance is an analysis in the book of a clear statement of the proper approach to the interpretation of contracts, as well as the implications that this approach has with regard to the admissibility of evidence.

The book also tracks the tension between the SCA’s and CC’s different views on the role of ‘good faith’ in the law of contracts. The CC has not provided any clarity on what ‘good faith’ means. While the SCA has attempted to clarify the CC’s views on good faith in the case of Barkhuizen v Napier 2007 (5) SA 323, the judgment still causes difficulties in High Court decisions. This has resulted in courts accepting different notions of good faith, and in some instances making contracts for the parties based on their notions of good faith. The differing views by the courts, and the confusion arising in recent case law, makes this a riveting read for practising attorneys, interested in the law of contract.

In this edition the sections on prescription and restraint of trade have also been rewritten. The section on prescription clarifies the application of the provisions of the Prescription Act 68 of 1969. Furthermore, the section on restraint of trade reflects more accurately how restraint of trade provisions can be partially enforced without severability.

A further commendable feature of the book is its reference to the impact of the Consumer Protection Act 68 of 2008 (CPA) in the context of unfair contracts. The book provides a brief but detailed account of the key points of reference of a broad application of the CPA to the law of contract in ch 1. It also makes reference specifically to the notions of unconscionable conduct, unfairness and unreasonableness with regard to conduct, contracts and the terms of contracts in ch 8 of the book.

Overall there has also been formatting changes in this edition of the book. This includes the use of section headings and cross referencing to the sections rather than to the pages, to improve ease of reference.

There is a need for a book that provides a comprehensive analysis of South African contract law for practitioners, and this book definitely satisfies that need.

Diann Bishunath is a candidate attorney at Webber Wentzel in Johannesburg.

This article was first published in De Rebus in 2017 (July) DR 56.

De Rebus